Hall v. Allen , 31 Wis. 691 ( 1873 )

The following opinion was filed at the June term, 1872.

LyoN, J.

The only grounds of demurrer assigned which seem to require notice, are included in the general one, that the complaint does not state facts sufficient to constitute a cause of action- of which a court of equity has jurisdiction.

We are of the opinion that the objection is not well taken, and that the complaint does state a cause of action cognizable in the circuit court.

The statute provides that “ whenever any will of real or personal estate shall be lost or destroyed by accident or design, the circuit court shall have the same power to take proof of the execution and validity of such will, and to establish the same, as in the case of lost deeds.” ' Tay. Stats., 1214, § 15.

This is a remedial statute, and must be liberally construed; and we have no difficulty in holding, even if the jurisdiction of the circuit court depended upon this statute alone, that it has jurisdiction.

But it is perfectly clear that a court of equity has jurisdiction of the action independently of the statute. The gravamen of the complaint is the fraud of the appellants in concealing the will or destroying it; and fraud is peculiarly within the jurisdiction of courts of equity.

I am aware that there are many decisions which hold that equity will not set aside the probate of a will fraudulently obtained, and such is probably the law. Holden v. Meadows, ante, p. 284, and cases cited. But I have seen no case which holds that equity will not take cognizance of an action like the present one, brought to establish a will fraudulently concealed or destroyed.

We have not been favored with any brief or argument on behalf of the appellants, and do not, therefore, feel called upon to enter into a very elaborate discussion of the question presented by this demurrer.

By the Court.— Tbe order of tbe circuit court overruling tbe demurrer, is affirmed.

SECOND CASE.

Eton, J. Tbe only difference between tbis case and tbe former is, that Mary M. Allen is not a party to tbis action. Sbe is doubtless a necessary party thereto; but tbe objection that sbe is not made a party is not taken by tbe demurrer to tbe complaint, and is not available to tbe appellant. Tbe cases being in all other respects alike, tbe same order that was made in tbe other ease must be made here.

By the Court.— Tbe order of the circuit court overruling tbe demurrer to tbe complaint, is affirmed.

Motions for a rehearing in these cases were denied at tbe January term, 1873.